The facts which I shall detail for you here today present essentially two questions affecting national labor law.

The first question is, shall a uniform federal time limit apply to suits under Section 301 (a) of the Labor Management Relations Act as amended?

Or shall the variant state statutes of limitations apply to those suits?

The second question is, if state time limits are held to be applicable shall a suit for vacation pay on the written terms of a collective bargaining agreement be treated for the purposes of selecting the applicable time limitation be treated as a suit under federal law and governed by federal principles or be treated as a suit under state law or wages under state principles and therefore determined by state principles of law.

Chief Justice Earl Warren: Is that second question here?

Mr. Stephen I. Schlossberg: Yes, Your -- yes Your Honor, it is.

It's a --

Chief Justice Earl Warren: Did he --

Mr. Stephen I. Schlossberg: I may have stated a little differently than it is in the book but it is here.

Chief Justice Earl Warren: I see.

Yes, alright.

Mr. Stephen I. Schlossberg: In the event, the court --

Chief Justice Earl Warren: There's no question about it being here?

Mr. Stephen I. Schlossberg: I think not.

Chief Justice Earl Warren: Yes.

Mr. Stephen I. Schlossberg: On September 1st, 1955, the union -- the petitioner in this case entered into a collective bargaining agreement for the Hoosier Cardinal Company.

Among the contract provisions in that collective bargaining agreement was one which required certain vacations for employees employed under that contract.

Chief Justice Earl Warren: Yes.

Mr. Stephen I. Schlossberg: There was a further provision that employee's who were eligible for vacation on the basis of time's work -- time worked and who had not taken their vacation on the previous year should receive vacation pay at the time of termination, if they were terminated for any reason.

On June the 1st, 1957, approximately a couple of years after the contract was first entered into over 100 workers were terminated, workers who had not taken their vacations in the previous year.

The company refused to pay their vacation pay required by the agreement.

Eight months later, the union's attorneys, local counsel filed in the Indiana State Court a class action seeking recovery of the vacation pay due the employees covered by the Hoosier Cardinal-UAW collective bargaining agreement.

At that time, this Court will recall that the decision of this Court in the Association of Westinghouse employees against Westinghouse Electric Corporation appeared to the bar to preclude a Section 301 suit in the federal courts for this kind of claim.

On January 21st, 1959, the state court ruled that the class action was improper under state law.

Thereafter, each employee in the class, each employee covered by the agreement assigned his wage claim to a union representative and the complaint was amended to provide for a suit by a union representative in his name.

The court then ruled that the assignment method of suit was improper in Indiana and further amended complaints were entered.

In essence, the original class action was reinstituted.

On demur from the company, the trail court finally held that the class suit method was improper and dismissed the suit.

This case was appealed to the Indiana Appellate Court.

And on April 18, 1963, approximately almost 6 years after the right had vested the suit was finally dismissed by the Indiana Courts.

In the mean time, Smith against The Evening News in 371 United States in 1962 had enlightened the bar and had effectively in our view overruled the Westinghouse case.

So on April 8th, 1964 less than a year after the final dismissal of the Indiana action, this Section 301 (a) suit was instituted in the United States District Court -- pardon me Your Honors, of the Southern District of Indiana.

In addition to citing provisions of the collective bargaining agreement and asserting jurisdiction under Section 301 (a), the complaints sought an additional remedy on the state law of double wages.

Whether we're entitled to that remedy or not, we do not know.

We thought the decisions for this Court were not clear on that issue.

At any rate, that remedy was sought with the 301 action -- 301 (a) action.

The company in the United States District Court urged their lack of jurisdiction citing Westinghouse and saying also to the court that the Indiana statute of limitations for oral contracts which I know is six years govern the suit because said the company, “This suit is bottomed on the oral contracts of hire and not on the collective bargaining agreement.”

The District Court on November the 12th, 1964, upheld the company's contention as to the statute of limitations and dismissed the union suit.

On appeal to the Court of Appeals for the Seventh Circuit, the union's principal arguments were, first, that state statute of limitations do not and cannot apply to Section 301 contract actions because these suits are governed exclusively by federal law.

And second, that in any event, this suit was timely because it was wholly on a written collective bargaining agreement and not on an oral contract of hire.

On June 4th, 1965, the Seventh Circuit affirmed the District Court holding that the Indiana state statute of limitations six years on oral contracts governed because the suit is bottomed on the oral contract of hire.

The Court of Appeals went further and held that the suit was really a suit by a union as an agent to enforce pay rights of individual workers and that here involved was a question wholly of state law.

Very frankly, if the Court please, our problem in the presentation of this case boils down to in essence, a situation where we feel, we cannot lose under either theory.

In other words, if the Court adopts which we hope and fully expect it to adopt, our theory that uniformed federal limitations must apply to federal suits under 301 (a) of the Labor Management Relations Act and in lined with that theory, follows through on its decision in Burnett against the New York Central Railroad.

Then on the federal principles of timeliness, this suit is timely.

On the other hand, if the court holds that state limitations must apply, we think it clear on the principles of federal law that this is a suit exclusively on the written terms of a collective bargaining agreement and not on an oral contract in the Indiana written statute of limitations which is 20 years would apply.

While it may be easier and a simpler task to urge upon this Court the 20 years statute because this is clearly a written contract, we very strongly urged on this Court, the federal principles, the uniformity principles so important to the development of Section 301 (a) law.

And we say that we want uniform federal time standards to govern.

We believe that the adoption of state statute of limitation which vary and we have put together a table in our petitioner for certiorari in Appendix B of our petition for certiorari that state statute of limitations which vary from six months to 20 years would inevitably lead to a crazy quilt pattern of limitations, confusing labor and management, the bar, and even the lower courts.

The real problem in this case as we view it is that the Seventh Circuit viewed this suit as one of state law and their rationale is at war with the federal law which must be supreme in this area.

The reasoning of the Court of Appeals that this suit on the express provisions of a written collective bargaining agreement is actually based on an oral contract of hire and if the union sues only as an agent here on a purely state claim, if we say, not only anachronistic but offensive to the Constitution.

We see it is very clear that Congress has intended for that to be a uniform body of federal law under Section 301 (a).

We take that mandate from the intent of Congress as determined in Lincoln Mills in 353 United States and Dowd Box of 368 and in the Lucas Flour case in 369 United States.

As this -- toward this Court thought, there must be comprehension in the formulation of the law interpreting the statute.

The national policy as we understand it is to see that identical terms of a contract whether enforced to might state law or a federal -- in a state court or a federal court and no matter which court will have the same meaning, and that mandates of the statute will have the same meaning no matter which court enforces them.

The key to Section 301 (a) as we see it is a national policy that commitments once made will be honored and that the fruits of a bargain will be enjoyed.

State statutes of limitations, any statute of limitations if you please, so far affects substantive rights that it can determine the results in the case as it did in this one.

We think it paid them that where state contract limitations varying from 60 days to 20 years, there is bound to be confusion and uncertainty in the interpretation and administration of collective bargaining agreements.

And this kind of variety and confusion decides disruptive a labor relation in interstate commerce is likely to encourage forum shopping.

Moreover and perhaps most important, the antiquated state theories of labor law which have been rejected in the formulation of national labor law, put it back into the field of labor relations.

As in this Seventh Circuit opinion, we are likely to have anachronistic conflicting rules of law which are at war with federal principles.

We believe that this Court should adopt the uniform federal standards for the time limitations on 301 suits.

We believe that on a suit like this on a breach of contract that six years would be an appropriate time for the court to adopt.

We say that because the median statute of limitations among the states as we've glean from our table is approximately six years.

Six years is the time set out for contract suits in the court of claims.

But we believe --

Justice William J. Brennan: The court has -- the court ever done anything like that or to take out --

Mr. Stephen I. Schlossberg: Well --

Justice William J. Brennan: (Inaudible)

Mr. Stephen I. Schlossberg: I think Your Honor suggested it, McAllister case suggested that you might look at the statute in the Jones Act to apply to other cases.

Justice William J. Brennan: Well, I think (Inaudible)

Wasn't that on the notion that after all the Jones Act suit was a Maritime times --

Mr. Stephen I. Schlossberg: That is right.

Justice William J. Brennan: -- on unseaworthiness (Inaudible)But I don't think I -- (Inaudible) ever before said, well, a median of six years to be good.

Mr. Stephen I. Schlossberg: Mr. Justice Brennan, as I see the development of this law there are two sources for the development of 301 -- of law under 301 (a).

One is the statute itself, National Labor Relations Act, as amended the Labor Management Relations Act and the other is judicial inventiveness.

Now, I think that we can't go half way on this field that if all on this law is going to be federal law, it should be federal law exclusively and that --

Justice William J. Brennan: Well, suppose we assume that that's so, it should be federal law but in other cases we have found a period which the Congress have fixed for some or at least I thought so, I think in McAllister, Congress picked three years, wasn't it, in the Jones Act (Inaudible)

Mr. Stephen I. Schlossberg: Three years, yes, Your Honor.

Justice William J. Brennan: I suggested that maybe that would be a good one because Congress had picked -- but here, we don't have anything like that, do we?

Mr. Stephen I. Schlossberg: We don't have a congressional indication of a time period or -- on this particular statute.

But we do have Congress saying that suit should be brought in the Court of Claims in six years which would -- it seems to me given indication of its feeling of the contract.

Justice William J. Brennan: I got the contract.

Mr. Stephen I. Schlossberg: Yes, Your Honor.

And in a way this is a national contract that's obviously not a completely voluntary contract as a private contract might be.

Chief Justice Earl Warren: Would the six-year limitations -- statute limitations help you in this case?

Mr. Stephen I. Schlossberg: It would, Your Honor, if the court follows through with that federal reasoning and then follows its tolling principles as set out in Burnett against New York Central Railroad.

In the Burnett case which was a federal employer's liability action, this Court held that where part of the time period of the limitations period is consumed in a state court and that suit is later dismissed on procedural grounds that action is tolled for the period of the state litigation.

Chief Justice Earl Warren: Did you argue that in the court below --

Mr. Stephen I. Schlossberg: No, we didn't Your Honor.

Chief Justice Earl Warren: -- in the Court of Appeals?

Mr. Stephen I. Schlossberg: We didn't --

Chief Justice Earl Warren: I beg pardon?

Mr. Stephen I. Schlossberg: No, we did not Your Honor.

We did not do that in the court below.

Chief Justice Earl Warren: So, is it properly here then?

Mr. Stephen I. Schlossberg: I think it is Your Honor.

Because in the court below -- first of all Burnett came down after the briefs have been filed.

The Burnett case came down from this Court after the briefs have been filed in the Seventh Circuit so that Burnett itself was supervening law.

But in any event, this argument was really unavailable to us because both the District Court and the Seventh Circuit, it indicated they were unwilling to accept our premise that federal law of principles govern here.

And it would have been of no avail to say, you must go one step farther from the foundation we've built and sophisticatedly apply a tolling rule.

Chief Justice Earl Warren: How did you know if the Court of Appeals would do until it -- until the case was over?

Mr. Stephen I. Schlossberg: Well, I guess we couldn't really know.

I'm just telling you that's the way it appears, Your Honor.

We don't say, however, that you need to adopt a set period for all suits under 301.

We recognize that some suits under 301 are in the nature of equitable actions, suits to compel arbitration, suits for injunction, suits to enforce arbitrations.

We think there is a federal equity rule which could be applied to these suits.

On the other hand, we think that suits which are in the nature of unfair representation of it joined with 301 (a) actions could be treated as suits involving injury to person or to property and we would suggest there that an appropriate state -- an appropriate federal statute of limitations would be two to three years which is the federal tort -- most federal tort actions and also the normal state tort limitation.

For Section 303 actions, we would suggest to the Court that six months would be an appropriate standard because it is the 10 (b) statute of limitations from the Act and Section 303 is almost in the words of an unfair labor practice.

Justice Abe Fortas: Is there any showing as to the reason for the delay of what you call 11 months -- I mean the decision of the Indiana Appellate Court in filing of federal action.

Now, Smith came down on December 10, 1962.

Mr. Stephen I. Schlossberg: That's correct.

Justice Abe Fortas: That was -- that four months before the Indiana Appellate Court decided the present case and then after the Indiana Appellate Court decided the present case.

There was elapsed of about 11 months according to your brief, am I correct?

Mr. Stephen I. Schlossberg: Yes, that is correct Mr. Justice Fortas.

Justice Abe Fortas: Now, is there anything in the -- before us to show why there was that delay in the circumstances of a claim that at the very least was getting well aged?

Mr. Stephen I. Schlossberg: Well, I don't know of any -- the reason for that delay.

Let me say that this whole case though is not a case where anybody was sleeping on there rights.

I mean, after all the union and the employees here in one form or another was vigorously pursuing this claim from -- frantically from the time it arrived.

Now, it had mishaps after mishaps in the federal courts.

It -- one -- in the state courts, excuse me, the state judge at one time wrote a letter and said, “Let each individual employee bring a suit.

You can't bring it as a class action.”

I think that the trial counsel and that parties in this case were actually confused and that would be my explanation for the 11 months.

I mean, we were still smarty from a series of defeat and mishaps and that's -- about the only answer I can give you Mr. Justice Fortas.

Unknown Speaker: How can you (Inaudible)

Mr. Stephen I. Schlossberg: To turn now to the argument we make that -- even under the Indiana statute, this case is timely, and again I say to the Court, that we hope you will adopt uniform federal standards and not restrict this case to -- and not turn 301 (a) actions over to the vagaries of state statute of limitation.

We think in a federal principle, that a suit brought in the expressed terms of a collective bargaining agreement is a written contract in federal law.

And we think to say that that suit is bottomed on an oral contract of hire and to transform a written contract into an oral contract for purposes of the states statute of limitations is a distortion of federal law and a confliction with federal law.

And we think that even if the state time period is applied, it is absorbed into the interstices from the federal system and becomes a part of federal law adopted for convenience from a state and that -- under that federal law, a written contract must be treated as 20 years.

Now, we think 20 years is a long time in labor relations for a contract to go.

But we nevertheless think that under this case, if principles of federal law supreme, we would have to win on that theory.

If it please the Court, I would like to reserve the balance of my time.

Chief Justice Earl Warren: You may.

Mr. Stephen I. Schlossberg: Thank you.

Chief Justice Earl Warren: Mr. Dees.

Argument of Harry P. Dees

Mr. Harry P. Dees: Mr. Chief Justice, may it please the Court.

I will first like to address myself to the jurisdictional questions that were raised in the courts below briefly.

As it's been indicated at the time this litigation arose and prior to the Smith case if it did overrule Westinghouse clearly, this case could not have been maintained in the federal court.

The facts are almost identical in which the union was seeking to recover vacation pay and even further in this case they're seeking to recover statutory penalties for double damages and attorney fees which of course would be allowed but only under the Indiana state law.

So, we thought there is a serious question as to whether or not Smith had effectively overruled Westinghouse in this particular type of case.

So we raised the point, and I'm sure that I'm not going to deliver it because you gentlemen are -- I'm sure familiar with both cases but we did think that when -- that the Smith case did not go to the extent of staying that in a case such as these where the union itself seeks to recover purely personal rights for the employees.

There's no relief sought in these case or behalf of union as such at all.

And finding out that under Indiana law a claim for statutory penalties under this case we've cited in our brief, McKinney versus Standard Oil, holds that claim for statutory penalties is not even assignable.

Only the employee himself can recover that right.

Well, we think -- we thought that where a union here is trying to recover those particular type of recoveries on behalf of this employees that we questioned whether Smith did go so far as to overrule Westinghouse in that respect.

For that reason, we raised the question below and frankly the District Court had some difficulty with that problem and the Circuit Court of Appeals didn't discuss it very much except that say that they thought it was -- this case did not conflict with those principles.

Our second point that we have raised in our jurisdictional question and I want to mention that just briefly and that is that we relied upon Republic versus Maddox which is on the proposition that it -- there was no grievance filed in this case, although, the contract required that the court would not have a jurisdiction to entertain a suit.

Now, their reply brief which was just served on us Monday, and I'd like to take this point to answer one or two things in this reply brief that I think are outside of the records and are incorrect and in which the company is going to deny and I think these points out the danger of permitting a case that was not presented to the case -- the courts below.

It's not the record in this case to be first tried in this Court for the first time.

I'm referring of course to the state court case that was not in the record, was not discussed at all in the briefs before the District Court or the Circuit Court of Appeals but in the first time, we have that -- that this Court has the case on an appendix by the petitioner.

And now in a reply brief, we're going to get in a controversy of facts because they (Inaudible) in this reply brief.

And this is obviously to get around this tolling proposition and they admitted that they didn't bring their first action till eight months after the cause of action arose.

They omit that two places in their brief in which they say at the page 3 of their brief, in giving you the facts they say this, that on Jan -- Jan -- at page 3 on June the 1st, 1953, the company terminated the employment of more than a hundred workers whose deployment and vacation pay were controlled by the union company agreement of 1955 but the company did not at that time or thereafter pay to the terminated employees their accumulated vacation pay.

Then they say, “Eight months after this refusal to honor the agreement on February 21, 1958, the union of companies filed a suite.”

Now in their reply brief they say, “The company finally ceased Evansville production operations covered by the contract with the union on June the 28th, 1957.

Its workforce was thereupon disbanded and operating officials left the state.

At a meeting on June the 25th, 1925, the company assured you that it would grant the vacation pay and would issue checks in the following January.”

However, when a group of employees went to the premises on January the 2nd, they were informed that the company was not in operation and no payment would be made.

Thus, when the company made -- manifest its violation of contract in January and had ceased its operations for six month the suit was brought in February.

Now that we deny that that statement was ever made.

That's going outside the record again and I wanted Your Honors to know our position in this case.

And we think it's brought in there and it's a direct conflict with what is previously alleged that the cause of action arose in June and they admit they didn't -- they waited eight months after the cause of action arose.

Now, they're trying to get the cause of action arose about a month before the recent file.

We say that's not correct.

Also, I might point out that they don't point out in the brief, they've make a point that a receivership was asked for this company and a footnote in the reply brief.

But they conveniently omit at the trial court -- denied the application for a receivership to this company shortly after the case was filed.

I want to just make those two points and still argue that on -- under the theory of matters there's a serious jurisdiction of question here whether this Court can recover.

Now, they say, “We went outside of the record”, that's another charge I'd like to repute.They say, “We are bringing it something in and out of the record.”

The record shows that -- and this is what we said in our brief, “We say no reference in the -- is in the record that appellant -- petitioner in this case filed a grievance.”

We didn't go outside the record.

We said it in this case, "The record doesn't show and the complaint does allege of performance of a condition preceding or that a grievance was filed."

So we think that on that question, we have a valid jurisdictional question here that should be determined.

Now, I'm getting to this question and I suppose this is the main issue in this case, is to whether or not this Court should adopt standards -- judicially adopt the statute of limitations.

We submit to Your Honors that this petitioner is really asking this Court to assume some terrific burdens here.

They not only want you to adopt, judicially adopt statutes of limitations for these national labor relations cases, they want you to go on the various categories and pick out the different types of action and adopt different formulations as to the standard there.

Further, they want you to adopt a formulation standard under the theory of the Burnett case that will toll the statutes in this case so they can effectively get in court under -- whatever theory that Your Honors adopt.

And I submit that it's -- asking quite a burden to this Court.

I ask you to go into that in detail.

Now getting back to this main question, that if the state -- whether the state statute of limitations should be applied in this case.

Your Honors, of course your familiar with the well-established rule.

Its been many times decided in this case -- Court that where the federal statute does not contain a limitation of time limitation that historically you follow the state rules but -- of the limitations.

Now, that's based on the rules of decision.

The early case, it was first decided in 1830 in McCluny versus Silliman but the really the Keystone case, I think, was the Campbell versus Haverhill and that was a patent case in 1894.

And I just like to quote one thing from Judge Brown who decided that case said at page 618, “The truth is that statute of limitations affect the remedy only and do not impair the right and that the settle policy of Congress has been to permit rights created by its statutes to be enforced in the manner and subject to the limitations prescribed by the laws of the several states."

Now, Judge Brown gave some reasons for that which I think are applicable here and which I like to call Your Honors' attention.

It would be an anomaly it said, for Congress to create a right without a limitation and intended no limitations should apply.

In other words he says, “Congress wouldn't pass a law, not put a limitation and expect that it would never -- that the statute would never be barred.”

So therefore, Congress indented that it -- they didn't put something in the Act that the state law would apply.

He also pointed out that it would be discriminatory if for the same set of facts under a state law that the head of state statute of limitations would apply to a litigant but if it was brought under a federal law for the same set of facts, there'd be no limitation that would apply to the federal law.

So they say, “That would be discriminatory” and that's another reason Congress did not intend for that to happen but that permitted the courts to look for the state law.

Now, in this case, Congress obviously has -- is cognizant of the fact that in 301 actions, 303 action, they didn't put a statute of limitations.

In many of this other federal acts that did not have statute of limitations such as the Patent Act, the Antitrust Act, Congress did go back later on and put in a statute of limitations.

It took Congress 40 years to get around in putting the statute of limitations in the antitrust laws but they finally did so.

But during that interim, federal courts seemed to get along alright applying the state statute of limitations and I'm sure they'll continue to do that in these cases.

And now, why would you use the statute of limitations?

We say it's the local contexts that were really covered.

Now here in this case, the plant is in Indiana, the employees are in Indiana, the logical place that they had bring the suit in federal court would be in Indiana.

In the Cope (Inaudible) -- Cope-Anderson case as Justice Black said in that case, “Moreover, limitations are federally created rights to sue -- to have -- similarly been construed to be governed by limitation laws of the state where the crucial culmination of events transpired.

Here the crucial common -- basing -- involved events transpired in Indiana, the plant is there, the employees are there.

In any of these labor cases where they talked about a need for a national uniformity, the plants where this men worked, that's where they're going to bring the action.

And if they should bring it to some other state, no doubt the federal court might send it back to the local scene were the breach occurred.

So we say that there is no reason why this Court should abandon its well established law that the state laws applied where the federal courts do not contain the limitation.

As a matter of fact, this very question has been raised in several -- in two cases involving the 303 in United Mine Workers versus Meadowcreek Coal, a Sixth Circuit case and the International Operating Union versus Fischbach and Moore, the key -- that question was raised.

They both applied the state statute of limitations.

Although in the Fischbach case the court said, they thought a six months statute should apply which I will go into later on.

But they -- they've felt like this -- the six months statute which is contained in Section 10 (b) of the Act were unfair labor practices should apply in this kind of cases.

But they said were bound by the well-established rules that we have to apply state law and they applied it.

Incidentally, both those cases held that the state law applied in this very question raised.

In the last case, the judge there also thought that the six months statute applied but felt -- and the District Court so held but the Supreme Court of Wisconsin holding that under this well-established rule reversed them and said that the state court limitation could apply.

This rule had been applied in many other federal statutes that do not have limitations.

The courts have gotten along fine.

I don't think it's -- and the union is -- the petitioner has made quite a -- explained that because this labor law and in certain cases Your Honors have expressed that it should have a uniform application.

I say that this rule doesn't do violence to that because here, you can have a uniform application as to the meaning of the contract and that particular matters but that doesn't mean that that would have necessary fall that you'd have to have a uniform limitations unless Congress put it in their.

I think it's desirable that probably there should be a limitation in the Act itself.

But I think it's for Congress to decide after hearings and so forth to decide, what is the proper act -- statute of limitations and I certainly would reject the petitioner's suggestion that they ought to be four or five different limitations for actions under 301.

There should be -- I think the 6-month statute which I will next address myself to, the -- assuming just -- that this Court should adopt the statute.

That -- I -- in my opinion, it would almost follow, that it should be the 6-month statute set out in 10 (b) of the Act which is provided for unfair labor practice.

Now, petitioner would admit that the six months would be alright on the 303 action but there is where the -- the company has to sue a union for secondary boycott.

Now, the union in that case would like quick action.

They want the employer to sue six months.

But if -- it turned around, there go to sue the company, the union would suggest six years.

I think to be consistent and it was pointed out in the International versus Fischbach, that court went into this question very carefully as to whether the 6-month statute apply.

That was a 303 action for a secondary boycott.

They said he thought that six months statute should apply and he gave the congressional history where Mr. -- Senator Taft couldn't separate the various sections.

It's all under one Act.

And in one Section they have this 60 -- this six months limitation but in the 301 Section they don't have it.

But he points out that in many, many cases, an action under 301, just like in the Smith case, can also be an unfair labor practice.

And the u -- and the board -- if the board wanted to prosecute that action against the company for an unfair labor practice they would have been bound by the 6-month statute.

But you can go into the court and there is no statute and we say that to be consistent and to carry out this uniform law then, if the court adopts anything it should adopt the 6-month statute.

And in that case under any theory, the petitioner could not recover in this case.

Now, getting to this question and incidentally I think Your Honor answers Mr. Justice Brennan's question awhile ago that whether or not there is any place you could draw from or a source of creating a statute.

We think it's a perfect example of -- when you were talking -- the McAllister case that here is a six-month statute in this very Act applying to a different section but overlapping and in many cases on the identical facts we think that's an obvious source for it if this Court feels it should.

My suggestion is to the court and I'm sure the court would not unnecessarily assume lot of burdens of trying to pick out which statutes would apply.

That if you do decide you need to make a formulation that six months period isn't correct.

Now getting to this tolling question because --Suppose the --

Mr. Harry P. Dees: Sir?

Argument of Mr.justice Black

Mr.justice Black: Suppose the Federal Government has created a cause of action, the state has none like it and there was no statute of limitation fixed, what would you say then?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: The Federal Government created a cause --

Rebuttal of Mr.justice Black

Mr.justice Black: Created a cause of action, a civil cause of action?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: There is no action of that kind in a state so it had no statute of limitations for that kind of action?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: I think in that --

Unknown Speaker: (Inaudible)

Mr. Harry P. Dees: In that case I think there would have to be some judicial formulation or conceivably it would never toll and I suppose that's not beyond the realm of possibility although it certain would be unreasonable never to toll an action.

But in the absence of any statute it would be up to the Court to judicially create one and I suggest that a state court might be hesitant to do it thinking it (Inaudible)

This Court might be able to do so.

Rebuttal of Mr.justice Black

Mr.justice Black: What is the state cause of action -- it's like this state cause of action from which you want to borrow that statute of limitations.

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Well, what is the state cause of action --

Rebuttal of Mr.justice Black

Mr.justice Black: Yes.

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Well sir, the state cause of action to be the same as this, it would be a suit on this --

Rebuttal of Mr.justice Black

Mr.justice Black: It doesn't have --

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: -- employment contract.

Rebuttal of Mr.justice Black

Mr.justice Black: Indiana have one of this kind?

A cause of action for this?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Oh, yes sir, you already could file suit on a contract, an employee could file a suit in Indiana State Courts on an employment --

Rebuttal of Mr.justice Black

Mr.justice Black: Penalty?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Sir?

Rebuttal of Mr.justice Black

Mr.justice Black: Penalty?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Yes sir.

They have special statute.

We've set about in our appendix to our brief, these penalty statutes of Indiana in which they say that you have to pay the employee's wages within ten days.

If you do not pay within ten days after the demand, then he is entitled to a dollar a day damages for each day that you refuse to pay him until it reaches double the amount of the pay.

And then there -- he's entitled to double damages and he's also entitled to statutory attorney fees.

And that's exactly what the petitioner is seeking to recover in this case, that's why we think when he says this an action exclusively on this written labor contract it just can't be if you read his complaint because on the very first page of -- the very first of his complaint he sets out the sta -- the -- these Indiana statutes on which he's recovering.

I've set it out on page 11 of my brief because we think it's so pertinent here.

Paragraph 10, that pursuant to the Acts, they generally assume the State of Indiana of the year 1911 Chapter 68 and of -- for thereof and in accordance with the Acts of the General Assembly for the year 1933, Chapter 47.

There is due the employees represented by the claim, an amount equal the double unpaid wages which amount is in excess of $80,000.

Therefore, the plaintiff asked judgment against the defendant corporation in the amount of $40,000.

Now, that's the amount of wages which that would be the claim and the only claim he would have under the so-called written contract he says.

But, they go further together with liquidated damages in the amount of $80,000 together with the reasonable attorney -- for plaintiffs' attorneys and such other relief.

So you see his whole case when he argued that this is bottomed squarely on the written collective bargaining agreement that under the decision of this Court in Smith that you got to apply a 20-year statute of limitation falls on the very weight of his own complaint in which he is relying desperately on the Indiana statutes.

As a matter of fact, he wants to recover more under this Indiana family statutes than he does on the primary cause of action.

Rebuttal of Mr.justice Black

Mr.justice Black: What is the part of the complaint in which he's relying on Indiana statute, (Inaudible)

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Paragraph 10, Your Honor.

I've set out --

Rebuttal of Mr.justice Black

Mr.justice Black: Paragraph (Inaudible)

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: On page --

Rebuttal of Mr.justice Black

Mr.justice Black: Paragraph 10 of (Voice Overlap) --

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Yes.

It set out in page 3 of the record.

The whole compliant is set out.

Rebuttal of Mr.justice Black

Mr.justice Black: Yes.

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: I've set out the excerpt, paragraph 10 and the prior at page 11 in my brief on the first argument.

Rebuttal of Mr.justice Black

Mr.justice Black: Well, is it controversy over that particular one as to what statute of limitations applies?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: No sir I don't -- as a matter of fact under Indiana law, that question was never really raised below because I don't think the court ever had decided.

There's a two years statute of limitations in Indiana after recovering any penalty.

So actually this case would have been barred on this penalty part under a two-year statute of limitations which we lift --

Rebuttal of Mr.justice Black

Mr.justice Black: You mean, so far as paragraph 10 is concerned?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Yes, sir, that's right.

Now, the other action Your Honor as we -- we think the lower court correctly decided under a series of Indiana cases that the 6-year statute applied because this contract was partially oral and partially in the writing.

Now, were not suggesting to the Court that is the basis of this action, I'm going to have to rely upon this union contract to certain extent.

But it's like any contract that is partially in oral a partial in writing under a statute of limitations law.

They say that unless you can take the whole contract -- the whole law suit -- frankly, from the four corners of the contract that you have to resort to parole evidence.

And if you had to resort to parole evidence then that is the same as if it was the contract not in writing so far as statutes of limitations are concern and you apply in Indiana the six years statute of limitations for a contract not in writing.

I think Your Honors, I might out this one, I think there's a misconception that this question of parole evidence, parole evidence means extrinsic evidence.

It does not (Inaudible) -- it does not necessarily mean a verbal testimony.

In other words, and the reason I make this point is that in the reply brief that suggested, “Well, you didn't need anything here.

We could prove this written -- we could prove the employment relationship here by the payroll records.”

That under Indiana law and under well established law is extrinsic or parole evidence which brings it squarely within the statutes of limitation where they say if a contract is partially paroled and partially in writing this oral statute or rule statute of limitations applies.

Indiana says, “Contracts not in writing”.

So we -- I want to make that point that there is a difference that parole evidence does not necessarily mean verbal testimony.

It means any extrinsic evidence that you have to introduce on a court to make out to your law suit.

Now, if he says this is exclusively on a written contract.

He carries that written contract and quit.

He's going to have to introduce payroll records or something but we go one step further in this case.

We have an affidavit that they were no written contracts whatever with these employees that they were all -- employed under a verbal oral contract and that was not contested.

They're controverted, although the plaintiff or the petitioner had the right to do so, an -- in the -- at the court below in our motion if they wanted to controvert that so, you had to take that that in this particular case.

Now some cases, there may be cases where an employee signs up a written contract and there -- and incorporates the terms that this were the written -- the 20-year statute of Indiana could apply.

But this is not such a case as shown by the record here because their affidavit shows that this were oral verbal contracts and not written contracts of employment.

And you've got to create the employment relationship before there can be an action on the contract itself.

Justice Abe Fortas: Are you saying sir that the collective bargaining agreement is not in effect?

Mr. Harry P. Dees: No, sir.

I do not say that.

And I say that in this case, they can rely as part of there proof would have to be on the collective bargaining agreement.

But they would have to go outside of that and have to show an employment relationship which would take parole or extrinsic evidence.

Justice Abe Fortas: But you're not contesting the point, if I correctly understand you.

You're not contesting the point that their claim, approximate amount of $40,000, that part of their claim is bottomed on the written collective bargaining agreement?

Mr. Harry P. Dees: That -- they wouldn't be entitled but except for the written agreement, yes, sir.

Yes, sir, that part is bottomed partly on it.

It's partly on that and partly on the verbal employment of contract.

They have to prove both.

They have to prove that the written part of the contract should create the vacation pay they claim.

But they have to also introduce parole evidence to show that this particular employee worked for this company.

Justice Abe Fortas: And that would be true in every case, wouldn't it?

Mr. Harry P. Dees: Well -- yes, sir.

I mean if he --

Justice Abe Fortas: But not in -- you're not suggesting there's anything different with respect to the $40,000 here than it would be in any other case where an employee sues, the union sues on his behalf under a collective bargaining contract.

And do I correctly understand you?

Mr. Harry P. Dees: That's correct.

That -- the only point I was trying to make is that in some instances there may be a completely written contract with the employee himself.

He may sign a written contract would be so that there is no parole evidence necessary at all that the written -- his employment contract is in writing, the union contract is incorporate by reference, its all a written contract.

In that case, if that has been the case here, I'd say we might be in trouble on the 20 years statute of limitations of Indiana but because it was not that way because there is the necessity parole or extrinsic evidence, in order to maintain this action, the Indiana courts have said.

The Seventh Circuit Court in exactly the same set -- factual situation in -- on which the Seventh Court relied below said that in these cases, because the employee is not named in the contract.

Therefore, you have to use parole or extrinsic evidence then for statute of limitations purposes that takes it out of the written contract category of 20 years and puts it in the 6-year category or 6 years that's what I'm (Voice Overlap) --

Justice Abe Fortas: Did the Indiana Court so rule in this case?

Or has that (Inaudible)

Mr. Harry P. Dees: The Indiana Court never got to that question in this case.

Justice Abe Fortas: So that didn't -- does your brief contain any references to Indiana decisions on this point?

Mr. Harry P. Dees: Yes, sir, your Honor, at footnote --

Justice Abe Fortas: You know what -- just don't take your time like this, (Voice Overlap) --

Mr. Harry P. Dees: Yes sir, it does.

It a footnote plus the best exposé of the Indiana law.

I suggest Your Honor read the District judge's opinion in this case.

He analyzed it very carefully, quoted from the two Seventh Circuit Court of Appeals who were construing this Indiana 6-year statute on a case involving a union contract where employees, the identical facts in this case were before the Seventh Circuit in earlier cases construing this identical Indiana statute and that's in the District judge's opinion which is set out in the record at page 20, starts at the -- its -- starts at page 12 -- 1223 of the records of District Court's opinion which I think very clearly --

Justice William J. Brennan: Well, I mean (Voice Overlap) --

Mr. Harry P. Dees: -- points out under Indiana law this case would be governed by the 6-year statute of limitation.

Now, in my few remaining minutes, I'd like to address myself to these tolling questions which on any statute which the Court would have say is more than six months, the petitioners would seek to avoid the influence of any statute.

We say first that this case of Johnson versus Hoosier Cardinal should not even be considered by this Court.

It was not in the record below.

We've already point out the dangers of considering the case of this point because here we're getting in a dispute even before this Court on the facts.

We deny some of the charges made in this reply brief.

So that's one good reason sir.

And I think this Court's precedent had said if the case, the point hasn't been raised below, it should be raised -- it could not be raised here for the first time.

And certainly he says, “Well, it wouldn't have done us any good but I don't know how anybody can tell what effect it might have had had that been an issue in it, although, I do not think under the facts in that Burnett case.

The facts here, it would have been applicable at all."

I don't think as Mr. Chief Justice Fortas has suggested, I don't think there's going to be any excuse for that almost a year, 11 and a half months, between the time that the filed decision in the state court was rendered and this suit were filed in federal court.

I think that's a delay that's -- that they're never going to be able to explain.

Also there -- and as I pointed out, there was an eight months delay in filing even in the original action.

So you got two years of delays into that -- therefore, he suggested that anything less than two years would be tolled but we say that that action should not apply at all and that we have shown in our brief the reasons why the Burnett case should not apply.

Thank you Your Honors.

Rebuttal of Mr.justice Black

Mr.justice Black: May I ask you just one question?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Yes sir.

Rebuttal of Mr.justice Black

Mr.justice Black: Suppose the court should think you were wrong and the federal law does apply -- should apply, what would you suggest as to the formulation of the federal statute of limitations?

Could there be none and just be left open?

Or that'd be a general rule of (Inaudible) or that they try to suggest to fix the definite time of years?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Your Honor, I would suggest that if it had to be then it should be a reasonably short statute.

I see no reason why they shouldn't -- anyone bring an action of this type in six months whether that's too short, I don't know?

I don't feel I'm confident to suggest to this Court what the statute should be.

I frankly think --

Rebuttal of Mr.justice Black

Mr.justice Black: I (Voice Overlap) -- I understood you really to be saying that the Court shouldn't be trying to fix the different sides between different terms (Voice Overlap) --

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: That's right.

Rebuttal of Mr.justice Black

Mr.justice Black: It sounded pretty logical to me.

If it doesn't do that what would you say?

If it doesn't try to fix a certain number of years (Voice Overlap) --

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Well, I think then it should be --

Rebuttal of Mr.justice Black

Mr.justice Black: We have -- to absolutely open as though there were none?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: No, sir.

I think --

Rebuttal of Mr.justice Black

Mr.justice Black: Or that there'd be some kind of federal rule elected?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: No, sir.

I don't believe in (Inaudible)

I think that agreed on the uniformity.

I think that the Court should leave it like it is, that the state statutes of limitations apply in these cases.

Rebuttal of Mr.justice Black

Mr.justice Black: I understand that.

But suppose it didn't work -- couldn't -- it wouldn't do that?

Rebuttal of Harry P. Dees

Mr. Harry P. Dees: Well, I think to be consistent it would have to adopt the six months flat statute of limitations.

I do think that the argument of my distinguished opponent underlines the complexities of local law that we've been to this kind of a situation.

His very explication of the Indiana law that a written collective bargaining agreement because proof to show who the people covered by the agreement may be needed from outside sources unless the collective bargaining agreement and the written agreement of hire or one document is anachronistic, I say, and it shows the troubles we get into in this field.

I would like to say a word about the -- a word more about the 10 (b) problem, the 6-month statute.

I think this Court by implication in Smith against The Evening News rejected for the six months 10 (b) statute of the unfair labor practices sections of the Act.

I note that in Footnote 5 on page 198 of Smith against The Evening News, this Court noted that that suit which involved the unfair labor practice was not brought within the six months period of the labor board's jurisdiction.

Now, I think there is no more reason for this Court to adopt the six months statute on contract actions than there is for it to allow preemption of the Labor Board in contract actions.

I do think that the reason for the 6-month statute and unfair labor practices, it is well-grounded in public policy.

They are in the nature of toward actions in most cases and the witnesses should be gotten fast and the investigation by the administrative bodies should be completed in a hurry.

But sometimes and I do not wish to get in to an argument with my opponent in an unseemly argument on the facts here.

But I say that sometimes we have to -- we -- in written contracts we know what we're doing.

When we have a defense like the Republic against Maddox raised here and I do think that case is good and right but if were raised below there may be a reason why the agreements procedure.

I don't want to argue about the facts but I'm sure that there needs to be development of the reasons why the agreements procedure wasn't used -- if it wasn't used.

And I do represent to the Court that the non-record facts that we mentioned in connection with the Republic against Maddox argument are based entirely on notes which we received from union representatives who were present.

Now, I don't know if they're accurate.

I can't test to that but I can only say that this kind of issue needs to be developed.

Justice Byron R. White: And has it more ordinarily than the rule or not that the -- when the federal statute doesn't have a limitations included in a -- that the courts have gone to state law --

Mr. Stephen I. Schlossberg: I would answer your question this way.

I would say that in the ordinary case where there are no compelling considerations of uniformity and of regularity then in the ordinary case I would say that it is appropriate for the Federal Government to adopt the state statute and to apply.

Justice Byron R. White: Congress nowadays with the adoption statute, it doesn't put a limitations period in it, should you really assume that they intend the courts to make one up or do you think in somewhere you -- that Congress in view of the rule that spend normally applied there would be -- would intend state law to apply?

Mr. Stephen I. Schlossberg: I think Mr. Justice White that Congress intended the statue to be substantive federal law and they must have intended that these contracts and this statute be interpreted the same all over whether in a state court or a federal court as this Court has thought.

I think they intended that not only substantive but procedural law be the same and I think that what -- whether you call a statute of limitations substantive or procedural in lined with the whole intent of Congress in these various parse words in 301 (a).

They must have intended a uniform limitation.

Justice Byron R. White: Well, that might be true if Congress had said expressly, this so many words that the courts were supposed to fashion federal law into 301.